Haas v. New Jersey Pinelands Com'n
| Decision Date | 01 February 1988 |
| Citation | 547 A.2d 331,227 N.J.Super. 313 |
| Parties | James E. HAAS and Catherine Haas, husband and wife, Plaintiffs, v. NEW JERSEY PINELANDS COMMISSION, State of New Jersey, Defendants. |
| Court | New Jersey Superior Court |
Patrick F. McAndrew, Moorestown, for plaintiffs (Brandt, Haughey Penberthy, Lewis & Hyland, P.A., attorneys).
William H. Lorentz, Deputy Atty. Gen., for defendants (W. Cary Edwards, Atty. Gen.).
HAINES, A.J.S.C.
This opinion addresses numerous substantive and procedural issues relating to the Pinelands Commission ("the Commission").
James E. Haas, Jr. and Catherine Haas (both sometimes referred to as "Haas") own a gravel pit within the Pinelands Area in Tabernacle Township, Burlington County, New Jersey. Use of the pit commenced many years before either Pinelands or Tabernacle land use legislation was adopted. The Haas, claiming this use to be nonconforming and vested, insist upon their right to its continuance, an insistence with which the Tabernacle Planning Board, in approving their site plan application, has agreed, as has this court in an unpublished companion case. The Board's approval is now before the Pinelands Commission for review and potential denial.
On June 10, 1985, prior to the commencement of the Planning Board proceedings, Haas, as required by Pinelands legislation, filed an application with the Commission for development approval: authority to continue the use of the gravel pit. Before any development approval had been granted, however, Haas conducted excavating operations in the pit. This activity resulted in the Commission's institution of a suit on August 29, 1985, for restraints. No responsive pleadings were filed by Haas but a consent order disposing of the suit was executed by this court on October 15, 1985. That order directed the Commission to issue a Certificate of Filing attesting to the completeness of the Haas application no later than September 20, 1985. It prohibited Haas from conducting any resource extraction operations in the gravel pit "unless and until all necessary development approvals are obtained from the proper authorities, including but not limited to Tabernacle Township and the Burlington County Soil Conservation District, and such approvals are reviewed by the Pinelands Commission...."
The master plan and land use ordinances of Tabernacle Township were certified by the Pinelands Commission on September 6, 1985, thereby providing the municipality with jurisdiction over development applications in the Pinelands. The Haas application then before the Pinelands Commission was therefore transferred to the Township Planning Board for decision.
A regulation contained in the Pinelands Commission Master Plan ("CMP") permits existing resource extraction activities to continue provided certain registrations or permits were obtained prior to February 8, 1979. The Planning Board refused to apply the regulation, holding that it was unconstitutional. That determination has been affirmed by this court in Esposito, today's companion case.
The within action was commenced on August 10, 1987. It charges the Commission with various state and federal constitutional transgressions, arbitrary actions, violations of the Municipal Land Use Law, N.J.S.A. 40:55D-1, et seq. and advances a theory of estoppel. Haas seeks a judgment enjoining the enforcement of the CMP registration-permit regulation, and awarding damages, both punitive and compensatory, attorneys fees and costs as well as other equitable relief. The Attorney General moves for summary judgment dismissing the complaint. This opinion, denies that motion, but grants a partial summary judgment.
The Haas complaint claims that the registration-permit regulation adopted by the Commission and many of its procedures are unconstitutional. The procedural questions raised are particularly significant. They include the following:
1. Is the Pinelands Commission limited in its review of the development approval to the record made by the Planning Board? If not, what is the function of the Planning Board in Pinelands matters? How does the Municipal Land Use Law affect these questions?
2. What is the allowable scope of the Commission's review? Is it permitted to raise issues not raised before the Planning Board?
3. What right, if any, does a developer have to present evidence at a Commission hearing?
4. When review issues have been referred to an Administrative Law Judge for a hearing what is the scope of that judge's jurisdiction?
5. Are the rules which govern the proceedings of the Commission unconstitutionally vague?
6. What jurisdictional authority is shared, if any, by the Commission and the Superior Court?
The fact that these questions are significant does not permit this court to address them. R. 2:2-3 provides:
(a) As of Right. Except as otherwise provided by R. 2:2-1(a)(3) () appeals may be taken to the Appellate Division as of right
....
(2) To review final decisions or actions of any state administrative agency or officer, and to review the validity of any rule promulgated by such agency or officer ..., except that review pursuant to this sub-paragraph shall not be maintainable so long as there is available a right of review before any administrative agency or officer, unless the interest of justice requires otherwise....
The issues raised by Haas concerning the regulations and procedures of the Commission, therefore, must be heard by the Appellate Division. The proper action of this court is to transfer them to the Division pursuant to R. 1:13-4. Township of South Orange Village v. Hunt, 210 N.J.Super. 407, 510 A.2d 62 (App.Div.1986). That is the proper forum even if its jurisdiction appears to be concurrent or overlapping with the trial court. Pascucci v. Vagott, 71 N.J. 40, 362 A.2d 566 (1976) This opinion, however, disposes of all remaining issues except those relating to civil rights damage claims based upon the alleged unconstitutionality of the Commission's rules and procedures. Those claims must be tried by this court but only after the constitutional questions have been determined by the Appellate Division, and then only if they, or some of them, are determined favorably to Haas.
The Commission argues that the complaint in this matter must be dismissed because the issues raised by Haas should have been raised in the 1985 restraining action. I disagree.
The entire controversy doctrine was recognized in Ajamian v. Schlanger, 14 N.J. 483, 103 A.2d 9 (1954):
The policy of the new practice contemplates that the Superior Court litigant not only should initially plead any legal and equitable claims or defenses, whether or not consistent, supporting his position in the controversy and seek all legal or equitable remedies which he may desire, but also, with the aid of the broad discovery and pretrial procedures by which he may obtain all the facts material to the positions of both sides, that he should avail himself of the liberality allowed to form and reform his pleadings and the pretrial order accordingly, the opportunities for such amendment being restricted, in any substantial degree, only by R. 4:29-1(15) and 4:15-2 applicable to amendments offered after the entry of the pretrial order, or during trial. [at 485, 103 A.2d 9]
Fairness and knowledge are essential ingredients of the doctrine. Thus, in Wm. Blanchard Co. v. Beach Concrete Co., 150 N.J.Super. 277, 375 A.2d 675 (App.Div.1977), the court said:
The point, of course, is that a component of the controversy may not be unfairly withheld, and a withholding is by definition unfair if its effect is to render the pending litigation merely one inning of the whole ballgame. [at 294, 375 A.2d 675]
The Appellate Division, in The Malaker Corp. v. First Jersey National Bank, 163 N.J.Super. 463, 395 A.2d 222 (App.Div.1978), considered harshness in applying the entire controversy rule, saying:
We do not regard this result as a harsh one. Plaintiffs were in possession of all facts necessary to their present theories of recovery long before the bank initiated the state court litigation seeking recovery of the amounts loaned ... If there were breaches of this agreement, Malaker knew of them, by personal involvement therein, well before any litigation commenced. Nothing was discovered after the litigation commenced relevant to the matters in the present action. [at 499-500, 395 A.2d 222]
In Zaromb v. Borucka, 166 N.J.Super. 22, 27, 398 A.2d 1308 (App.Div.1979), the court noted that both Blanchard and Malaker "impliedly hold that if a party does not know of a related claim, the entire controversy doctrine does not operate as a bar to a second suit on the unknown claim."
Finally, in Brown v. Brown, 208 N.J.Super. 372, 506 A.2d 29 (App.Div.1986), the court dealt with the obligation to raise claims based upon facts occurring after litigation commenced. It held that the entire controversy doctrine required an application to the court for permission to file a supplemental pleading asserting the claim. The issue would then be left to the discretion of the court. Principles of judicial administration, such as unacceptable trial delay, might require the new claim to be tried separately. "... [N]o matter how germane the subject matter of the supplemental pleading, it may nevertheless, on balance, have a greater potential for vexation and for prejudice to the parties if joined with the original action than if reserved for later and separate action." Id. at 381, 506 A.2d 29.
In Brown, the application to the court was not made. Nevertheless, the court held that the entire controversy doctrine was not a bar to the later assertion of the claim, a marital tort claim which arose after commencement of a divorce action. The court noted that the "tort claim is sufficiently distinct and independent from the...
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